RAINBOW Party General Secretary Wynter Kabimba has asked President Edgar Lungu to intervene in the conflict between Speaker of the National Assembly Dr Patrick Matibini and the Constitutional Court, saying if left unchecked, there will be a direct conflict between the Legislature and the Judiciary in the near future.
And Kabimba says America-based Zambian law Professor Muna Ndulo’s comments on Speaker Matibini’s position that he too has powers to interpret the Constitution was emotionally charged.
In an interview, Kabimba warned that leaving the conflict unresolved would be problematic.
“This is an important matter in which the President should take interest and avoid a situation where one day we actually have a direct conflict between the two arms of government; the Judiciary and the Legislature or between the Chief Justice and the Speaker like it happened in Zimbabwe when the High Court handed down a judgement in favor of former Prime Minister Ian Smith, who was a member of parliament then, and ordered that his suspension from Parliament was illegal ab initio, [that] Ian Smith must be paid all his emoluments for the period that he was on suspension. The Speaker refused to obey that judgement of the court. It had to take threats or a threat from the Chief Justice Enoch Dumbutshena and his Supreme Court colleagues that they were going to resign if the Speaker was not compelled by the Head of State Robert Mugabe then to obey their judgement. It was Mugabe who stepped in to resolve that Constitutional Crisis between the Judiciary and the Legislature. So he took interest in the matter as head of the Executive arm of government that ultimately is above the two arms. I think there is a precedence here that President Lungu should fall back on in order to avert an apparent direct conflict of the two arms of government,” Kabimba said.
Kabimba attributed the current “atmosphere of unease” between the Judiciary and the Legislature to the Constitution Amendment Act number two of 2016.
“The developments which have the Genesis in the Kambwili case, which was the first time that the ConCourt attempted to pronounce themselves on the extent which the Speaker can’t go in discharging his functions on Constitution matters, have led to an atmosphere of unease. An atmosphere of unease in the nation between the two organs of government; the Judiciary and also the Legislature. This arises like I have argued in the past that Constitution amendment act number two of 2016 is a bad law,” he said.
“No much thought was put into that amendment because when you look at Article 128, which establishes and outlines the jurisdiction of the Constitutional Court, it clearly spells out the ConCourt shall interpret the law but the framers of that article forgot that you have the Speaker of the National Assembly who also discharges, in his day to day functions, some responsibility when he is making rulings on points of order which may touch on the Constitution. So, the first thing that they should have done is that they should have made Article 128 subject not only to 128 but also the article that relates to the Legislature.”
And Kabimba said Prof Ndulo’s reaction to Speaker Matibini’s ruling was emotionally charged.
“I have read the Kambwili case which is the Genesis of this argument and I have had a privilege of reading the Speaker’s latest ruling on this matter. I have also read Professor Muna Ndulo’s reaction to the Speaker’s ruling. I take the following views: that the Speaker makes it very clear in his ruling and he says the following in his summary, he recognizes that the interpretation of the law is the preserve of the Constitutional Court. He also says nowhere in that ruling, and I have read it fully myself, does he say expressly or impliedly does he say that the Constitution Court cannot say anything to him as interpreted by Professor Ndulo. What he says instead is that he is cautious and he knows that once he has handed down a ruling, that ruling is amenable to the jurisdiction of the Judiciary so an aggrieved party of the Speaker’s ruling can go to the Judiciary and seek judicial review of that ruling and the Court will decide,” Kabimba said.
“The Speaker goes further and says that when he is sitting to make a pronouncement on a point of order, he doesn’t exercise any judicial function. So, he exercises a function of pronouncing himself on a procedure that is supposed to be observed in Parliament. However sometimes in doing so, those pronouncements have to touch on legal provisions and it is to that extent that they have touched on legal provisions that he says those ruling are amenable to the jurisdiction of the Judiciary. So there is really no contradictions per se for as long as the Speaker confines himself to the territory of directing Parliament, members of Parliament on issues that are within the confines of the Legislature. He does not in any way, in that ruling, challenge the authority or the jurisdiction of the Constitutional Court.”
He said Prof Ndulo was being aggressive in assuming that Speaker Matibini was portraying himself as being above the law.
“So, I think Professor Ndulo deliberately misread the Speaker’s ruling for reasons that I do not understand myself. You can also tell from even just the title as he quotes Julia Caesar ‘what meat does Matibini feed on’, that the man from the beginning, he was aggressive in his reaction to the ruling which is not supposed to be the spirit of an academician. We have a lot of respect for Professor Ndulo, he is an academician of international acclaim. That, you can’t take away from him but on this one, even as his student, I respectively differ with him. I think the article which he rolled out was emotionally charged more than academically spirited. So the Speaker’s position after reading his ruling is very clear,” he said.
“He also says in his ruling that the aspect of Constitutional Court where they made a comment about how far the Speaker can go or where they said that the Speaker is not supposed to interpret the Constitution because that is their domain. He says that is obiter, it was not the foundation of the Kambwili case which seemed to have given rise to this debate. So, there is nowhere in that ruling where Speaker Matibini is saying he is above the law. There is nowhere in that ruling where he is saying the ConCourt cannot tell me anything because that is in quotation marks in Professor Ndulo’s article like it has been uplifted from the ruling, that is not correct. It was a misinterpretation of what the Speaker actually says in the ruling.”
Kabimba insisted there was need to amend article 128 of the 2016 Constitution as it was the foundation on the ongoing fiasco of the two organs of government.
“I think there is still need now that Bill 10 is still alive that Article 128 be considered with the view of amending it to make this position very very clear on the jurisdictions of the ConCourt and the jurisdiction of the Speaker before we see a conflict between the two arms of government; the Judiciary and the Legislature and before we see a paralysis of the Speaker’s discharge of functions,” said Kabimba.